When the State prevents you from proving your innocence, and kills you in jail instead

The people of India and its institutions seem to have largely gotten used to the idea of watching the world around them burn in the last two years. A Parliament with a supermajority kept passing legislation with brute force — we watched them do it. Later, an 84-year-old Jesuit Father, who had worked for Adivasi rights all his life, was jailed for hatching a fantastically purported plot to assassinate the Prime Minister along with 15 other activists, poets, lawyers and scholars — we watched them do it.

Father Swamy, suffering from Parkinson's disease, was made to wait for two weeks by the NIA, which just came back to let him know that they will not be able to provide a sipper for him to drink water in jail — we watched them do it.

The priest, whose work was largely with locals in the interiors of Jharkhand, kept saying he had been framed — much like many of his other co-accused, and died in custody waiting for courts to decide whether he should be allowed to go and die among his people — we watched them do it.

The last two years have seen several shocking developments across the country, where the Central government has prevailed over everyone else by sheer brute force and bullying. Every time people found new ways to hold it accountable, it kept changing the rules. If there is journalism critical of it, then it is called fake news and FIRs are registered under anti-terror laws. If people protest against legislation like the CAA, then the government finds the power to define certain protest activities as terrorism — solely based on its discretion. If activists, scholars, poets and lawyers are becoming inconvenient, there appears a fantastical Maoist plot to assassinate the PM and topple the Government of India.

The damning reports from US-based forensic investigator Arsenal, that have emerged since the tragic custodial death of one of the Bhima Koregaon-16 — Father Stan Swamy — are now presenting more and more causes to believe that the 16 intellectuals, activists and civil society leaders charged for the violence at Bhima Koregaon and the subsequent purported Maoist plot to topple the elected government were carefully selected to make a particular narrative fit in court.

But even as we argue whether the charges against the BK-16 for the violence at Bhima Koregaon would hold up under scrutiny, the people of India and its institutions have gotten so used to watching crucial moments of intervention pass them by that the elected government of the largest democracy was allowed to imprison without trial elderly and ailing beacons of their communities for years and we watched them do it.

The death of Father Swamy in custody has now raised serious questions on the health of our prisons system and its ability to safely house elderly inmates. In addition to this, what Father Swamy's death points towards is the inability of the government or government-run institutions such as the jails and investigating agencies to accommodate the accused's Constitutional rights without waiting for a court to order it — this again pointing towards a larger problem of the increased burden on courts now to intervene and ensure every accused is afforded each of their liberties guaranteed by the Constitution.

Those who have been arrested in this case and dubbed the BK-16 include Sudhir Dhawale, a writer and Mumbai-based Dalit rights activist; Mahesh Raut, a young activist from Gadchiroli who worked on displacement; Shoma Sen, who had been head of the English literature department at Nagpur University; advocates Arun Ferreira and Sudha Bharadwaj; writer Varavara Rao; activist Vernon Gonsalves; prisoners' rights activist Rona Wilson; Surendra Gadling, a UAPA expert and lawyer from Nagpur; Father Stan Swamy; Delhi University professor Hany Babu; scholar and activist Anand Teltumbde; civil liberties activist Gautam Navlakha; and members of the cultural group, Kabir Kala Manch: Sagar Gorkhe, Ramesh Ghaichor and Jyoti Jagtap.

As an overall result of this new India, where every right of the citizen must be reinforced with a court order, many like Father Swamy die in custody waiting for the wheels of justice to start turning — the question remaining: How longer will the other 15 Bhima Koregaon accused will be robbed of their liberties without even being given a chance to prove their innocence.

And, as the BK-16 were left in congested prisons amid a raging pandemic, the elderly among them continued to approach courts with pleas for medical bail, yet to be granted to anyone except poet Varavara Rao — that too after months of court hearings. With Father Swamy's death, the rest of the 14 accused now remain in jail and their families are anxious, worried, angry and desperate.

Anand Teltumbde (71), now the eldest of the Bhima Koregaon accused, has been suffering from mild asthma and spondylitis which was caught by doctors just before he was picked up by the police. Currently, he is incarcerated in the Taloja Central Jail, and his family's worries have only increased since Father Swamy's death, according to interviews in the public domain.

62-year-old Shoma Sen has arthritis and her daughter has said that the jails are not equipped to deal with her condition, which had led to the worsening of her condition and chronic pain in her knees. Even lawyer Sudha Bhardwaj's health has deteriorated since she was jailed. The 60-year-old lawyer has osteoarthritis and, while in jail, has developed conditions that now require her to take medication for hypertension, a recurring skin infection, and a heart illness.

While every time these accused have sought medical bail, the Centre has argued that they can be taken care of in jails. These elderly people are simply struggling for their right to medical care at the hospital of their choice. The reason that this has become necessary is exemplified by Father Swamy's testament in court.

When asked whether he would like to be shifted to the JJ Hospital after falling sick in jail for the second time, he said he'd rather die in captivity than to get admitted to that hospital.

Now, consider this. The government selects 16 people, says it found some "documents" in their computers, and decided to charge them with a Maoist conspiracy. When the accused say they had nothing to do with the documents, the probe agency insists otherwise. When the accused try to question the validity of these alleged documents, they are not allowed to do so. And when the accused seek medical treatment during a pandemic, they are called "regular complainers" who are trying to shift jail complexes.

Cybercrime experts and lawyers have already said that the series of forensic reports prepared by Arsenal after analysing the computer hard drives of three of the BK-16 — Rona Wilson, Shoma Sen, and Surendra Gadling — are damning enough for them to be used in court at trial. In fact, they are good enough to debunk the bulk of the allegations against them which, the NIA claims, is contained in 14 key incriminating documents.

Arsenal's investigations found that these 14 purported documents were planted in the computers of both Wilson and Gadling by a cyber-attacker who had also purportedly tried to infiltrate the computers of some of the other accused in the case.

In addition to this, Wilson and his lawyer have been claiming since day one that the files were clearly planted because they had neither been opened nor edited even once. What's more is that they said that the particular version of Word file that was found on the system could not have been created by Wilson because his system did not have the same version of the software.

Many of the accused, such as Wilson, Gadling, and Sen have approached courts on the basis of these reports — seeking that their case be quashed. But every time the Arsenal findings were placed before the court, the NIA had a different argument for why it should not be considered.

At one point in April this year, the NIA, while denying the contents of Arsenal's findings, first cast aspersions on its credibility, then said it cannot be admitted because the probe agency (under the Centre) does not recognise its authenticity and then finally said that it cannot be admitted because it is not part of the chargesheet already filed against them.

While on the one hand, the law shifts the burden of proof to the accused at this stage, on the other hand, the Centre is insisting that the only material that they can use to do so must bizarrely arise out of the allegations against them.

Given all that has now become public about the Bhima Koregaon case and the 16 accused, there is, at this juncture, a very critical question before the people of India and its government. Are public resources best spent on prosecutors parroting the same line to keep them in jail? Is there any reason whatsoever for the investigative agency to not examine Arsenal's forensic analysis?

This especially when the forensic reports have already provided the IP address of the computer that planted the files — a starting point for investigators. Besides, there is the damming fact that the government, with its considerable resources, will at least have a better shot at identifying where the plants came from.

The report identified the malware as one NetWire which has been increasingly being used for large-scale financial fraud. Many cases in the US have discovered the use of this malware. In addition, the Pakistan government has reported that several of its agencies might have been compromised by a NetWire attack.

If the NIA truly believes that there is a Maoist plot to topple the foundations of India, they surely have a most important responsibility to investigate those responsible for allegedly framing upstanding beacons of Indian society for this plot.

Views expressed are personal